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2014 DIGILAW 552 (GAU)

Nurul Islam v. State of Assam

2014-05-20

TINLIANTHANG VAIPHEI

body2014
Tinlianthang Vaiphei, J. 1. Aggrieved by the withholding of his pension, the petitioner is filing this writ petition for appropriate relief. The petitioner was serving as Project Officer of Char Development Project under the Department of Agriculture, Government of Assam till 30.9.2011 when he retired from service on attaining the age superannuation. On 13.3.2012, he submitted his pension papers to the respondent No. 3 (Director of Agriculture, Assam), who then forwarded the same to the respondent No. 1 (Secretary to the Government, Agriculture Department, Assam). Simultaneously, he also applied for payment of provisional pension, which was granted with effect from 1.10.2012. At this stage, it may be noticed that the petitioner had been sent on deputation to the District Rural Development Agency, Kamrup during the period commencing from 16.9.1997 to 12.1.2004 as Assistant Project Officer (Agriculture). During this period, certain irregularities were alleged to have been found with respect to procurement of UV film for construction of low cost green house-cum-rain shelter, which eventualities became known as "Green House Scam". Before finalising his pension claim, the respondent No. 1 on 27.8.2012 sought for information from the Secretary, Political (Vigilance Cell) Department as to whether there is any vigilance case pending or contemplated against some officers including the petitioner and whether any of such officers are being charge-sheeted or not The Deputy Secretary, Political (Vigilance Cell) Department on 1.11.2012 informed the respondent No. 1 that 14 officers including the petitioner are involved in Vigilance P.S. Case No. 2/2004 and have been charge-sheeted vide C.S. No. 08/12 dated 30.03.2012. However, the petitioner was not aware of these correspondences, and has all along been expecting that the pension papers already submitted as early as 30.9.2011 would be finalized. When his pension was not released even after inordinate delay, he on 15.3.2013 submitted a representation before the respondent No. 1 for early release of his pension. When no response to his representation was forthcoming, he on 26.6.2013 filed an application under the Right to Information Act, 2005 seeking information, inter alia, the reason for the delay in releasing his pension claim. Ultimately, the SPIO & Joint Secretary, Agriculture Department vide his reply letter dated 23.7.2013 informed him that the delay in releasing his pension had been occasioned by his involvement in the said vigilance case. 2. Ultimately, the SPIO & Joint Secretary, Agriculture Department vide his reply letter dated 23.7.2013 informed him that the delay in releasing his pension had been occasioned by his involvement in the said vigilance case. 2. It would appear that the petitioner thereafter made several representations to the respondent authorities claiming his innocence and for early release of his pension, but to no avail, but the respondents held their ground and refused to do so. Though a number of contentions have also been raised by the petitioner challenging the validity of the vigilance case pending against him, I do not propose to deal with these contentions. In my opinion, the only question which falls for consideration in this writ petition at this stage is whether the respondents have legal justification for withholding the pension, which is otherwise entitled to him under the law once he has retired from service on superannuation. There is no dispute at the bar that the said vigilance case arose out of Dispur P.S. Case No. 567/2002 U/s. 420/468/471/109/120B IPC r/w Section 3(3) of Benami Transaction (P) Act and Section 13(1)(a)(ii)/13(2) of the Prevention of Corruption Act, 1988, which was charge-sheeted only in 2012. In other words, the vigilance case pending against the petitioner admittedly arose out of the incident/irregularities which had taken place prior to 2002. The petitioner had retired from service on superannuation on 30.9.2011. The law relating payment of pension to a retired employee in Assam is regulated and governed by the provisions of Rule 21 of the Assam Services (Pension) Rules, 1969, which are reproduced below: "21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement provided that? (a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; Explanation.? The continuation of the proceeding after the final retirement of the officer shall be automatic under sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing Authority nor any show cause notice to the person concerned shall be necessary. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. (b) such departmental proceeding, if not instituted while the office was in service, whether before his retirement or during his re-employment? (i) shall not be instituted save with the sanction of the Governor of Assam; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) the Assam Public Service Commission shall be consulted before final orders are passed. Explanation.? For the purpose of this rule- (a) such departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, of if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted? Explanation.? For the purpose of this rule- (a) such departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, of if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted? (i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance, is made, and (ii) in the case of civil proceeding, on the date of presentation of the plaint in Court. Note 1.- This applies also to recoveries from death-cum-retirement gratuity and family pension sanctioned under Chapter VIII. Note 2.- Under the above rules, besides the right of ordering recovery from a pension of the amount of any pecuniary loss caused to Government, the Governor of Assam has also reserved to himself the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified period. The authority which institutes proceedings of the nature referred to in the above rule, should without delay intimate the fact to the Audit Officer concerned." 3. A plain reading of Rule 21 of the Assam Service (Pension) Rules, 1964, makes it abundantly clear that the authority has a right to withhold or withdraw a pension or any part of it permanently or for a specified period, if the pensioner was found guilty of grave misconduct or negligent or negligent during the period of his service. However, for withholding pension, it would be necessary to draw a departmental proceeding or a judicial proceeding against the delinquent. Such departmental proceeding/judicial proceeding may be instituted while the pensioner was in service or while he was re-employed. The departmental proceeding may also be initiated against the pensioner even after his retirement under clause (b) of Rule 21 provided the sanction of the Government of Assam had been obtained to do so. However, such departmental proceedings cannot be taken with respect to any event which had occurred more than four years before such institution. Similarly, such judicial proceeding must be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution. The term "judicial proceeding" comprises of criminal proceeding and judicial proceeding. Similarly, such judicial proceeding must be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution. The term "judicial proceeding" comprises of criminal proceeding and judicial proceeding. In the case at hand, we are concerned with a criminal proceeding. A criminal proceeding is deemed to be instituted on the date on which a complaint or report of a police officer on the basis whereof cognizance is taken by the Magistrate. Moreover, the proceedings may be conducted only by such authority and at such place as the Governor of Assam may direct in that behalf. It also requires that the Public Service Commission shall be consulted before orders are passed. 4. Thus, on a parity of reasoning, it can also, by virtue of Rule 21(c) of the Rules, be held in respect judicial/criminal proceedings that no such proceeding can be instituted for a cause of action which arose or an event which took place more than four years before the institution of such criminal proceeding. Even if the criminal proceeding is instituted in respect of the cause of action which arose or an event which took place less than 4 years before such institution also, the Assam Public Service Commission shall have to be consulted before final orders are passed. Explanation (b)(i) to Rule 21 says that a judicial proceeding shall be deemed to be instituted on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance, is made. The report of police officer referred to in Explanation (b) to Rule 21 can, in the context, only mean a final report submitted under Section 173 Cr.P.C. because cognizance of the offence(s) charged against the employee is taken only on such final report/charge sheet. No cognizance can be taken by a Magistrate until and unless charge is submitted by the police in a police case. The submission of Mr. No cognizance can be taken by a Magistrate until and unless charge is submitted by the police in a police case. The submission of Mr. P.N. Goswamy, the learned counsel for the petitioner, is that in the instant case, the alleged incident occurred in the year 1999, for which the FIR was lodged only on 2.9.2002, while the charge-sheet was filed before the trial court only in the year 2012 and that in that view of the matter, the criminal proceeding conducted against the petitioner for the incidence which had occurred in the year 1999 i.e. 12 years before his retirement in 2011 is ultra vires the provision of Rule 21(c) of the Pension Rules. According to the learned counsel, since the criminal proceeding instituted against the petitioner, being null and void, and is, therefore, non-est, the respondent authorities cannot legally withhold the pension of the petitioner, which should have been released immediately on his retirement. In any case, he maintains, there is absolutely no legal basis for withholding his pension when he has not even been found to be guilty of grave misconduct or negligence during the period of his service: the criminal proceeding, albeit illegally instituted, is still pending and is now stayed by the Apex Court. Strong reliance is placed by him on the latest decision of the Apex Court in State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Ann, AIR 2013 SC 3383 . 5. Mr. S. Chamaria, the learned standing counsel for the Agriculture Department, however, supports the impugned decision of the respondent authorities and submits that so long as the criminal proceeding is, rightly or wrongly, pending against the petitioner, and he is not acquitted by the criminal court conducting the trial, there is no question of releasing the pension in his favour. Moreover, contends the learned standing counsel, the petitioner is involved in white collar crimes for causing massive pecuniary loss to the Government, the release of his pension before conclusion of the criminal trial will be prejudicial to public interest. He, therefore, strenuously urges this Court to dismiss the writ petition, which is devoid of merit. 6. Moreover, contends the learned standing counsel, the petitioner is involved in white collar crimes for causing massive pecuniary loss to the Government, the release of his pension before conclusion of the criminal trial will be prejudicial to public interest. He, therefore, strenuously urges this Court to dismiss the writ petition, which is devoid of merit. 6. In my considered view, the legal position is reiterated by the Apex Court in Jitendra Kumar Srivastava (supra), which is on all fours with the instant case, the Apex Court was also dealing with the provisions of Rule 43(b) of the Bihar Pension Rules, which are also virtually couched in the same terms as Rule 21 of the Rules. Holding that pension is a hard earned benefit which accrues to an employee and is in the nature of "right to property" guaranteed under Article 300A of the Constitution and which cannot be taken away save by authority of law, the Apex Court goes on to hold that: "9. Having explained the legal position let us first discuss the rules relating to release of pension. The present case is admittedly governed by Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under: "43(b). The State Government further reserves to themselves the right of withholding the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligent during his service including service rendered on re-employment after retirement." From the reading of the aforesaid Rule 43(b), the following position emerges: 1. The State government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding. 2. This position does not empower the State to invoke the said power while the departmental proceeding or judicial proceedings are pending. 3. The State government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding. 2. This position does not empower the State to invoke the said power while the departmental proceeding or judicial proceedings are pending. 3. The power of withholding leave encashment is not provided under this rule to the State Government irrespective of the result of the above proceedings. 4. This power can be invoked only when the proceedings are concluded finding the employee guilty and not before. 10. There is also a Proviso to Rule 43(b), which provides that: A. Such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment. i. Shall not be instituted save with the sanction of the State Government. ii. Shall be in respect of an event which took place not more than four years before the institution of such proceedings. iii. Shall be conducted by such authority and at such place or places as the state Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made: B. Judicial proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment shall have been instituted in accordance with sub-clause (ii) of clause (a) and C. The Bihar Public Service Commission shall be consulted before final orders are passed. It is apparent that the proviso speaks about the institution of proceedings. For initiating proceedings, Rule 43(b) puts some conditions, i.e. Departmental proceedings as indicated in Rule 43(b), if not instituted while the Government servant was on duty, then it shall not be instituted except: (a) With the sanction of the Government, (b) It shall be in respect of an event which took place not more than four years before the institution of the proceedings. (c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made. Thus, in so far as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings are initiated. 11. (c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made. Thus, in so far as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings are initiated. 11. Reading of Rule 43(b) makes it abundantly makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental enquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending." (Underlined for emphasis) 7. I have taken the pain of reproducing the foregoing paragraphs in extenso since they do have a direct bearing on this case. As already found by me, the criminal proceedings pending against the petitioner arose out of the cause of action/irregularities which had taken place in 1999, for which charge sheet was filed only in 2012 i.e. less than a year after his retirement from service, the criminal proceeding, which was instituted is in respect of the cause of action/event which took place more than ten years before his retirement, has become non-est. That apart, the following legal proposition has emerged by virtue of the law laid down by the Apex Court in Jitendra Kumar Srivastava (supra), namely, there is no provision under the Rules in which pension/gratuity can be withheld even if the departmental/criminal proceedings have not been concluded. What is further made clear by the Apex Court therein is that in order to enable the respondent authorities to validly withhold pension/gratuity of the petitioner, such departmental/criminal proceedings must have also ended in his being found guilty of the charge of grave misconduct or negligence during the period of his service including the service rendered upon his re-employment after retirement. Moreover, in the instant case, the criminal proceeding in question against the petitioner has now been stayed by the Apex Court vide the interim order dated 25.6.2013 passed in Special Leave to Appeal (Cri) No. 5080/2013 (Annexure-N to the writ petition). 8. Moreover, in the instant case, the criminal proceeding in question against the petitioner has now been stayed by the Apex Court vide the interim order dated 25.6.2013 passed in Special Leave to Appeal (Cri) No. 5080/2013 (Annexure-N to the writ petition). 8. The last, but not the least, question which falls for consideration is whether the payment of final pension to the petitioner can be withheld under Rule 22 of the Rules when the criminal proceeding is pending against him. As already noticed, the petitioner is now enjoying provisional pension under Rule 64 of the Rules due to the pendency of the said criminal proceeding. Rule 22 is in the following terms: "22. (1) Where any departmental or judicial proceeding is instituted under Rule 21 or where a departmental proceeding is continued under clause (a) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceeding, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement on the date of his retirement, up to the date immediately preceding the date on which he was placed, under suspension; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon. (2) Payment of provisional pension made under Clause (1) shall be adjusted against the final retirement benefits sanctioned to such officer upon conclusion of the aforesaid proceeding but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period. Note.? The grant of pension under this rule shall not prejudice the operation of Rule 106 when final pension is sanctioned upon conclusion of the proceeding. 9. Note.? The grant of pension under this rule shall not prejudice the operation of Rule 106 when final pension is sanctioned upon conclusion of the proceeding. 9. In my opinion, when the criminal proceeding pending against the petitioner is now found to be barred by Rule 21(c) of the Rules on the ground that it was instituted in respect of an event which had taken place more than 10 years before his retirement, Rule 22 cannot be taken recourse of by the respondent authorities to withhold his final pension. The criminal proceeding contemplated by Rule 22 which can authorize the respondent authorities to withhold his final pension must be a criminal proceeding which is instituted in accordance with or is permissible under Rule 22(c) of the Rules and not a criminal proceeding ultra vires the provision of such Rule. As already noticed, the respondent authorities have illegally acted contrary to law in instituting the criminal proceeding against the petitioner for an event which had taken place some ten years before his retirement. In my judgment, such criminal proceeding is a nullity and cannot be pressed into service by the respondent authorities for withholding his final pension. This warrants the interference of this Court. The seriousness or gravity of the crimes charged against the petitioner cannot be a ground for denying him the final pension payable to him under the law. The result of the foregoing discussion is that this writ petition succeeds. The respondent authorities are, therefore, directed to finalize the final pension including gratuity, leave encashment of the petitioner, etc. admissible to him under the law and pay the same to him within a period of two months from the date of receipt of this judgment. Needless to say, the provisional pension paid to the petitioner heretofore shall be adjusted against the final pension benefits being paid in terms of this judgment. No costs.